A Jurisprudence of Empathy Undermines the Rule of Law: Sotomayor Edition

Last week brought more evidence that a jurisprudence of empathy completely undermines the rule of law. Recall that President Obama, the most famous advocate of this kind of jurisprudence, suggested that empathy would make a difference in only a relatively few cases, because it had no role to play when the law was clear. I have previously suggested that empathy does not even help resolve those cases, because it’s almost always possible to have empathy for both sides. But Justice Sonia Sotomayor, his first Court appointment, shows that jurisprudence of empathy cannot be limited to hard cases. Instead, it leads her to disregard clear law in the cases that most tug at her heart.

The latest example comes in Puerto Rico v. Franklin California Tax-Free Trust. There the Court held that Puerto Rico could not create a bankruptcy law to govern the debts of its public utilities, because it was prohibited by the plain language of the federal bankruptcy act from creating its own bankruptcy law. Puerto Rico attempted to evade this prohibition by noting another provision of the bankruptcy code: “The term ‘State’ includes the District of Columbia and Puerto Rico, except for the purpose of defining who may be a debtor under chapter 9 of this title.” (emphasis added).

The majority opinion made short work of Puerto Rico’s position. The exclusion of Puerto Rico from the definition of a state is expressly limited to the question of who may be a debtor. It thus does not affect the prohibition that prevents states, the District of Columbia, and Puerto Rico from creating municipal bankruptcy laws of their own. Moreover, it would be surprising, to say the least, if Congress did not provide a clearer statement of Puerto Rico’s power to legislate in a manner prohibited to every other state in the union. There is a well-known axiom that legislatures are presumed not to hide elephants in mouse holes.

Justice Sotomayor acknowledges, as she must, the force of the Court’s “syllogism”. But she nevertheless would interpret the exclusion to allow Puerto Rico to create its own municipal bankruptcy law, because passing such a law is the “only existing legal option for Puerto Rico to restructure debts that could cripple its citizens. ” She then details possible bad effects, like rolling blackouts, the failure to pass a municipal bankruptcy law might entail. Her factual claim is perhaps not quite accurate. Puerto Rico could persuade Congress to pass a law permitting the restructuring of debts and has been in fact trying to do just that. But more importantly, her argument here does not seem related to any possible analysis of the meaning of the statute, but is an emotional appeal.

This is not the first time Justice Sotomayor has permitted empathy to drive her decision making. In Schuette v. Coalition to Defend Affirmative Action she wrote an opinion that was five times as long as any other in the case and the end of which reads more like an impassioned plea for affirmative action than a piece of legal analysis. There she claimed that the state of Michigan’s ban on affirmative action violated the Fourteenth Amendment’s Equal Protection Clause. Thus, for Justice Sotomayor, a law that mandated equal treatment with respect to race violated a constitutional provision that mandates equal treatment. Her selective empathy for certain kinds of students was sufficient to elide the meaning of a constitutional text.

Thus, a jurisprudence of empathy can erode the plainest legal text. Once empathy is empowered, it knows no bounds in the cases that stir a judge’s deepest emotions, which in Justice Sotomayor’s case include racial and ethnic preferences and her ancestral home. This jurisprudence is a clear and present danger to the rule of law.

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John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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